HKSAR v. TAM WAN YAN also known as PHAM BICH THUY and PHAM THI VAN

DCCC 254/2023

[2023] HKDC 958

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 254 OF 2023

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REASONS FOR SENTENCE

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1.  Ms Tam pleaded guilty before me to one charge of Theft (a pickpocketing), contrary to section 9 of the Theft Ordinance, Cap 210. Particulars are that she, on 5 November 2022, at No HPP 26 stall, Tai Nan Street, Sham Shui Po, Kowloon, in Hong Kong, stole one wallet, property belonging to another.

Facts admitted by Ms Tam

2.  On 5 November 2022, a customer Ms Yee (“the victim”) was carrying an unzipped rucksack on her left shoulder at the subject stall. At about 1:15 pm, Ms Tam stood on the left hand side of the victim. Both of them picked up a black jacket from the display rack. They chatted with one another. Using the black jacket as a temporary cover, Ms Tam took from the rucksack an LV wallet and then left.

3.  The LV wallet (worth $5,000) contained an overseas credit card and cash of $6,000.

4.  CCTV captured what happened.

5.  On 21 November 2022, in Sham Shui Po, patrolling police spotted Ms Tam whose appearance matched with that of the pickpocket shown in the CCTV footage. Ms Tam was arrested and on her was found cash of $3,630.

Criminal record

6.  Ms Tam has 38 previous convictions 37 of which were for theft or attempted theft.

Antecedents

7.  Ms Tam is aged 55 and was so at the time of the offence, educated to Secondary 7 level in Vietnam. She was unemployed at the time of arrest. Her date of last discharge from prison was 12 August 2022. She was born in Vietnam and lived in Sham Shui Po.

Mitigation

8.  Mr Christopher Grounds of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Tam. The following is a summary of the mitigation submissions.

9.  Ms Tam indicated her plea in good time resulting in her plea of guilty; she is properly entitled to a 1/3 discount from the starting point of sentence.

10.  Ms Tam arrived in Hong Kong from Vietnam in 1988. She is divorced and resided with her two daughters in Sham Shui Po prior to arrest. She suffers from hepatitis and arthritis.

11.  Ms Tam admitted to her criminal record which includes convictions for offences of dishonesty and theft by way of pickpocketing.

12.  The appropriate starting point for theft in the manner of pickpocketing has been well settled in that “[t]he guideline sentence of 12-15 months after trial is therefore appropriate for a first-time offender”: HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 at 7G-H.

13.  It was submitted that the offence here was an opportunistic theft (pickpocket) whereby Ms Tam was tempted by and took advantage of an open unzipped backpack to steal the wallet from within; that no implement was used to cut the backpack; she was acting alone; the area at the time of the theft was not crowded.

14.  It was submitted the aggravating factor of crowdedness was not present; hence the sentence should not be enhanced because of this factor.

15.  It was acknowledged that Ms Tam has a very poor record and such can be an aggravating feature to a basic starting point.

16.  Mr Grounds suggested a starting point of 18 months in this case.

17.  As a matter of contrition, Ms Tam is willing to make restitution in the sum of $3,630.

18.  It was submitted the sentence to be imposed should be as low as possible.

Sentence

19.  Ms Tam has an awful criminal record littered with numerous previous convictions of a similar or identical nature. Besides, she committed the present offence less than 3 months after the date of her last discharge from prison. It is no exaggeration to say she is a professional, recidivist and an unrepentant pickpocket. A deterrent sentence is called for.

20.  Despite the fact that the guideline sentence of 12-15 months’ imprisonment after trial has been reserved only for first-time offenders, in Ms Tam’s case, I will adopt an initial starting point of 15 months.

21.  To demonstrate the court’s abhorrence of Ms Tam’s entrenched pattern of misdeeds and to protect the general public from her potential future exploits, I will enhance that initial starting point by 10 months (Ngo Van Huy para 10(1) & (2) considered).

22.  Normally, for restitution to count as mitigation, it has to be made before sentencing. However, I take into account Ms Tam has been in remanded custody throughout and that the sum found on her at the time of arrest, namely $3,630, is in prisoner’s property.

23.  I will therefore make a restitution order under section 84 of the Criminal Procedure Ordinance, Cap 221, that the sum of $3,630 found in the possession of Ms Tam at the time of arrest be delivered to the victim Ms Yee Karena. To this end, I order that the said sum of $3,630 which is now with prisoner’s property be released forthwith to Ms Tam’s solicitors who I understand do undertake to deposit the same into the Shroff’s Office at Wan Chai District Court without delay. I order that the act of depositing be done within 10 days.

24.  I also understand the police who has the full particulars of Ms Yee will assist in making sure that the sum be delivered to or collected by Ms Yee in September 2023.

25.  With this arrangement in mind, I treat the partial restitution offered by Ms Tam as already accomplished. For this factor, I will knock one month off from the starting point of sentence resulting in a final starting point of 24 months’ imprisonment.

26.  Ms Tam pleaded guilty in good time earning for herself the customary 1/3 discount in sentence. Other than that, I cannot discern any other mitigating factor of weight to justify a further reduction in sentence.

(Ms Tam, please stand)

27.  The sentence for Ms Tam is 16 months’ imprisonment.